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Retention Of Indefinite Leave To Enter Or Remain In The UK

Posted by: Gherson Immigration

Acquisition of settled status in the UK generally means that a person is no longer subject to immigration control i.e. restrictions imposed on entry to the UK meaning there is no time limit to how long they can remain in the UK.

However, if a person who has been granted indefinite leave departs the UK for a prolonged period of time they may lose their settled status and may have to apply for an entry clearance in order to return to the UK to resume their residence here. This will largely depend on the length of the period of absence from the UK (generally 2 years plus), although even a short absence from the UK may lead to the revocation of the indefinite leave if a person seeking entry to the UK cannot show that they genuinely intend to re-enter for settlement purposes.

The Immigration Rules provide that a settled person who has been absent from the UK for more than 2 consecutive years will automatically lose their indefinite leave status in the UK. Certain exceptions apply to Commonwealth citizens who have been settled in the UK since 1 January 1973, partners and children accompanying members of HM Forces overseas, permanent members of British Council, Department for International Development, Home Office etc.

In a situation where indefinite leave in the UK has lapsed due to an absence from the UK of 2 years or more, a person will be re-admitted to the UK only if they make a successful application for entry clearance to the UK as a returning resident - submitted at a UK visa application centre in their country of residence overseas. Apart from qualifying as a returning resident and not being subject to the general grounds of refusal (as set out in the Immigration Rules), an applicant will have to demonstrate strong ties to the UK, for example, family, property or business connections. The Entry Clearance Officer will focus his determination not only on the strength of such ties to the UK, i.e. their nature and extent, but will also consider further relevant factors such as length of the applicant’s original stay in the UK and the length of their absence, their reasons for residing outside the UK and for their return to the UK.

A person, who after they have acquired settled status in the UK, has been absent from the UK for less than 2 years will normally retain their indefinite leave and will not be required to apply for entry clearance as a returning resident. However, in order for them to be re-admitted to the UK they will need to meet certain requirements. In particular, the Immigration Officer at the port of entry must be satisfied that the person returning to the UK was previously granted indefinite leave to enter or remain when they last left the UK, has not been absent from the UK for more than 2 years, has not sought public funds towards the cost of leaving the UK and can demonstrate they now wish to be admitted to the UK for the purpose of settlement. Although all of the above requirements must be met, intention to return to the UK to settle and reside here permanently is one of the key factors.  Thus even an absence from the UK for a couple of weeks may result in the indefinite leave being cancelled due to a change of circumstances, if the Border Force Officer is not satisfied that a person’s return to the UK is with a view to settle either now or in the near future.

If an application for entry clearance as a returning resident is refused or entry to the UK denied to a person who despite qualifying as a returning resident, for example, failed to prove their intention to settle in the UK at the point of entry, the individual will have the right to apply for an Administrative Review of the refusal.

Please note the above is only an outline of the Home Office policy regarding the decisions on returning resident applications and the applicable requirements. If you require professional assistance with your application, please contact Gherson for expert advice.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2018

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